There were some further amendments made in the Dáil to this measure, none of them of a very substantial character. In fact, they are largely drafting changes and the regrouping of sections. The purpose of one group of drafting changes is to gather together in the definitions section a few definitions which were previously to be found in the body of the Bill. Sometimes an auctioneer holds money as a stakeholder and, while he is holding it as such, it cannot be said to be clients' money because the client has not acquired a right to it. Nevertheless, we want to ensure that provisions such as those governing the lodging of the money in a separate bank account, apart from the auctioneer's own money, would apply. In the Bill, as it stood, we had a special provision to this effect in the section relating to separate bank accounts and we had similar provisions in some other sections. However, as a result of amendments in the Dáil, this matter is now covered in the definitions section and the later references are consequently deleted. The new arrangement will, I think, facilitate understanding of the Bill.
The next amendment to which I should refer is the new section 11, replacing the former section 11 of the Bill, which dealt with the freezing of bank accounts, and replacing also section 15 (1) and section 15 (2) of the 1947 Act which at present govern the payment of claims out of the deposit. The new section 11 deals comprehensively with the action that may be taken by the court when there is a claim against an auctioneer. However, it does more than just replace the provisions I have mentioned.
One of the difficulties that arose in the past was that, when there was any sign that an auctioneer was in financial difficulties, those who were well advised immediately staked a claim against the deposit and those who were first in had the right to have their claims satisfied in full before those who came later could get anything. It was a case of "first come, first served"; it led to an unseemly legal scramble and sometimes to injustice. The new section is designed to put an end to this, in so far as it is possible to do so, and to secure a more equitable distribution of the money available if there is not enough to pay everybody in full.
The new section is framed on the basis that the circumstances of cases can very widely and that the way to deal with that is to give the High Court a wide discretion as to how it should deal with these cases. For instance, it allows the court, in a straightforward case, to order payment of the claim out of the deposit. Alternatively, the court may freeze the deposit until the financial position of the auctioneer is clarified. If the facts so warrant, the court may go further and "freeze" the client account, and, if necessary, the auctioneer's ordinary account as well, until his affairs are clarified. Finally, if the facts so warrant and the interests of the client-creditors so require, the High Court is authorised, after prior notice to the auctioneer, to declare him bankrupt. I would stress that this step can be taken only after notice and, accordingly, the auctioneer will have an opportunity to show the High Court that such a step is not warranted.
Finally, I come to a small group of amendments relating to the accountant's certificate. We are providing in the Bill for two kinds of accountant's certificate, first, the ordinary annual one, and secondly, the special certificate that is required if an auctioneer has slipped up in the matter of keeping the requisite accounts and now wants to appeal to the court for the renewal of his licence despite his failure.
In such cases, the auctioneer has to produce a special certificate from an accountant. The Institute of Chartered Accountants represented to me that they were in some doubt as to the precise duties of the accountant in relation to such certificates and, in view of their criticisms, I moved some clarifying amendments. These provide as follows:
(i) that the certificate of solvency would have to relate, not only to the auctioneering business but to any other business in which the applicant was engaged as well; and
(ii) that the special certificate could be given at any time within a month preceding the application.
A further amendment made it clear that an accountant had no duty to examine records for a period subsequent to the period covered by his certificate—again this was a point on which the Institute asked for clarification.
I think that this covers everything of significance in the amendments made in the Dáil and I recommend the Bill, as amended, to the House.
